Manitoba judge denounces northern court's bail system as dysfunctional and insidious

A Queen's Bench justice has condemned what he calls a "dysfunctional bail system" in northern Manitoba's courts, saying it often violates the Charter of Rights of Freedoms.

In a written judgment released Thursday, Justice Chris Martin called for immediate and substantial changes to be made to reduce the waiting time for people to apply for bail.

"Timely bail hearings must be a high priority — they are a constitutional right," he wrote.

He wants to see an "injection of court resources" to address case volumes and backlogs that consistently lead to people being forced to stay in custody longer than necessary.

Beyond that, there are systemic issues that need "more fulsome solutions" to be implemented, Martin wrote.

His remarks are contained in a judgment involving the cases of two people, Lesley Ann Balfour and Dwayne Gregory Young, from different First Nations communities.

Their cases are completely unrelated except for one common feature — both had to wait many weeks to apply for bail.

"This is a disturbing chronicle of a dysfunctional bail system," Martin wrote in describing their cases.

Arguing their charter rights had been violated by the delay, both sought a stay of proceedings on their charges.

Before their charter applications were ready, Balfour's charges were withdrawn by the Crown and Young was found not guilty. 

Balfour and Young continued with their charter applications, seeking costs for the delays. 

The Crown suggested much of what happened to Balfour and Young was their own doing, saying they agreed to the remands every time there were delays.

Martin rejected that.

"In almost all instances, they and their lawyers went along with what was essentially inevitable. There was no real choice," he wrote.

The Thompson provincial court centre is the main justice hub for most of northern Manitoba. Next to Winnipeg, it handles the largest volume of criminal cases in the province, and from the largest geographical area, Martin said.

And that caseload has grown exponentially over the last decade.

At least 16 outlying communities depend on Thompson's court services, particularly for bail, and many of those are Indigenous and remote reserves. 

Thompson court services often rely on Crown attorneys, justices of the peace and defence lawyers travelling from Winnipeg, which contributes to the delays.

"This is something that the public needs to become aware of. It's something that we as a society should be seeking to change," a spokesperson for the Criminal Defence Lawyers Association of Manitoba said in a statement emailed Friday in response to the decision.

The Assembly of Manitoba Chiefs also supports Martin's call for a review of the judicial system, Grand Chief Arlen Dumas said in a Friday media release.

"We know there are logistical challenges in northern Manitoba, but these are longstanding issues that should have been addressed by Manitoba Justice years ago," Dumas said.

"Every citizen, First Nations or not, has the right to have timely bail hearings — nobody should be waiting as long as three weeks."

Balfour's case

Balfour was a 25-year-old single mother of four from Norway House, about 200 kilometres south of Thompson, when she was charged with assault in November 2017.

She had no criminal record and was "wholly unfamiliar with the court process," Martin said.

During her first appearance in court, the judge and lawyers agreed to remand Balfour until a second appearance in 22 days. She had not spoken to the lawyer who spoke for her, nor was she asked by the judge whether she understood the process, Martin said.

"She barely said four words in total. She was relegated to a bystander."

Over the next several weeks, Balfour was transferred to Brandon, then to the Women's Correctional Centre near Winnipeg.

It wasn't until 15 days after her appearance in Thompson, on Nov. 17, 2017, that she first spoke to a lawyer. He had been assigned to represent her by Legal Aid and was one of two lawyers routinely appointed to Norway House cases.

Her case was routinely postponed to other dates because of the court running out of time, Martin said.

From her arrest to her release, she spent 51 days in jail. She eventually was given bail but just before trial, the Crown stayed proceedings and her charges were dropped. 

Young's case

Young was 28 when he was arrested on Jan. 1, 2018, in Thompson, charged with aggravated assault for an incident from October 2017 at his home in Split Lake.

He agreed to a remand in custody to Jan. 4 for counsel to help with his bail application. That hearing was set off due to court running out of time.

On Young's next appearance, the judge requested more information and the case was remanded again. Over the next few weeks, the case was repeatedly remanded due to running out of time or the judge being ill.

Young spent 23 days in custody from arrest to his bail hearing. He eventually was found not guilty.

"As is no doubt clear, the violations of Ms. Balfour's and Mr. Young's charter rights were directly related to long-standing and glaring systemic issues," Martin said.

"This is of special concern, as many of these communities are Indigenous and many of those citizens suffer the effects of colonization."

'Assembly line justice'

Not only is the bail system cumbersome, in many instances it collapsed, Martin said, citing other examples.

"Critically, accused were timed out from having a bail application and were consistently remanded, with or without consent, for no proper reason other than a lack of resources," he said.

"It is assembly line justice. The human element was marginalized as an accused, the person whose freedom is at stake and who is presumed innocent, was sidelined."

The factors leading to a delay in meaningful and timely bail applications "are so pervasive, so insidious that even the standard bearers of the judicial system — judges, Crown counsel and defence counsel — frequently succumbed to the deficiencies" instead of defending an individual's constitutionally protected charter rights, Martin wrote.

He said those bearers of the justice system are "good, engaged and concerned" but their work is draining.

"They constantly circuit to remote courts, working long days with high volumes of cases in makeshift settings. I am convinced they were doing their best within the resource limits that were imposed on them," he said.

"Their frustration and good intentions are clear, but they were overwhelmed."

Martin said it is beyond his authority to make orders to fix systemic shortfalls but he wanted it on the record that something must be done.

"While I may not have jurisdiction to order the government to correct the problems, I would be remiss if I had not expressed my concerns in the strongest terms," he wrote. 

"Having said that, no doubt if substantial changes are not made, if the problems persist, then at some point a stay of proceedings or significant damages, through a civil charter lawsuit, will be the only effective remedies to motivate the powers that be to move appropriately on this issue."

He awarded costs to Balfour and Young, saying their lawyers each expended more than 100 hours of time and collectively incurred more than $10,000 in out-of-pocket expenses.

"In the end, Ms. Balfour and Mr. Young will receive nothing for the breaches of their individual charter rights, but their lawyers will be reimbursed their expenses and receive partial compensation for their efforts," he wrote.

"An order of costs is just. It is required because of the importance of the issue, as a matter of fairness, and to restore some integrity to the northern Manitoba justice system."

Rohit Gupta, a defence lawyer who represented Balfour and Young in their charter challenges, applauded Martin's direct words.

"I don't think it's any secret that the northern system is broken. Everyone in our community that's ever been to Thompson has literally turned their eyes to the back of their head, going 'what is going on up here?'" he said. 

"Justice Martin's decision is essentially a call to action. I think it's one of the most powerful decisions that we've had here in Manitoba when it comes to bail allotment."

The Supreme Court of Canada has, in recent years, emphasized the need to minimize pretrial detentions and ensure people's rights are respected, Gupta said.

"Justice Martin definitely reaffirmed that. His decision places emphasis on the value of human life, on the value of human time in detention," Gupta said. "This is the first of its kind in Manitoba."

He hopes the decision will shatter the "cultural complacency" that has been in place when it comes to the extended lengths of pretrial detention, but also worries about the lack of government funding to make a difference.

"We have to stop treating these individuals that are in northern Manitoba like they're just another number — like they're a storage unit," Gupta said.